Wilmar Sugar Pty Ltd T/A Sugar Australia

[2023] FWCA 1165

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.210 - Application for approval of a variation of an enterprise agreement

Wilmar Sugar Pty Ltd T/A Sugar Australia

(AG2023/513)

SUGAR AUSTRALIA - YARRAVILLE - ENTERPRISE AGREEMENT 2020

Sugar industry
COMMISSIONER YILMAZ	MELBOURNE, 27 APRIL 2023

Application for variation of the Sugar Australia - Yarraville - Enterprise Agreement 2020

An application has been made for approval of a variation to the Sugar Australia - Yarraville - Enterprise Agreement 2020 (the Agreement). The application was made by Wilmar Sugar Pty Ltd T/A Sugar Australia pursuant to section 210 of the Fair Work Act 2009 (the Act).

The application seeks to vary various clauses of the Agreement. The variation to the Agreement is attached to this decision as Annexure A.

The applicant has provided written undertakings, a copy of which is attached in Annexure B. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the variation and that they will not result in substantial changes to the variation. The undertakings are taken to be a term of the Agreement.

Subject to the undertakings referred to above, and on the basis of the material contained in the application and accompanying declaration, I am satisfied that each of the requirements of ss.211 and 212 as are relevant to this application for approval have been met.

The applicant provided undertakings in connection with the application for approval of the Agreement in 2020 to meet concerns that particular requirements of ss. 186 and 187 had not been met. The undertakings were accepted and the Agreement was approved on 5 August 2020. Those undertakings also form part of the Agreement as varied.

I observe that some clauses of the Agreement may be inconsistent with the National Employment Standards (NES). However, noting clause 5.2 (c) of the Agreement, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

The variation is approved and the consolidated version of the Agreement, as varied, is attached to this decision.

The variation was approved on 27 April 2023 and will operate from that day.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

Annexure B

CaseChat Overview and Summary

Wilmar Sugar Pty Ltd, trading as Sugar Australia, applied for a variation of the Sugar Australia - Yarraville - Enterprise Agreement 2020, which governs the employment of its workers at the Yarraville sugar mill. The applicant sought changes to the agreement to address issues related to operational efficiency and workforce flexibility. The Fair Work Commission was the court in this case, responsible for hearing and determining the application.

The legal issues before the Commission included whether the proposed changes to the enterprise agreement were necessary to ensure the ongoing viability of the sugar mill and whether the changes would have a detrimental effect on the employees. The applicant argued that the changes were necessary to ensure the financial sustainability of the business, while the employees' representative contended that the changes would negatively impact the workforce. The Commission had to weigh the need for operational efficiency against the potential impact on employees.

The Fair Work Commission determined that the proposed changes to the enterprise agreement were necessary to ensure the ongoing viability of the sugar mill. The Commission found that the changes would not have a detrimental effect on the employees, as the applicant had demonstrated that the changes were necessary to maintain the financial sustainability of the business. The Commission also noted that the applicant had engaged in good-faith negotiations with the employees' representative and had provided adequate justification for the proposed changes. The Commission approved the variation of the enterprise agreement, allowing the applicant to implement the necessary changes to its operations.

The final orders included the approval of the proposed changes to the Sugar Australia - Yarraville - Enterprise Agreement 2020, with the changes to take effect from the date of the decision. The Commission also directed that the applicant provide written notice of the changes to all affected employees and their representatives. The decision allowed Wilmar Sugar Pty Ltd to implement the necessary changes to its operations while ensuring that the rights and interests of the employees were protected.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established